Card Range To Study

179 Cards in this Set

The power of the courts to (1) REVIEW and (2) NEGATE/RULE UNCONSTITUTIONAL the acts of the other branches of government (congress or the president)

Other function of the court other than Judicial Review

Interpret the text of legislation. The court could determien how the langauge should be interpreted where it is vague.

What is a LIMITATION on the power of the COURTS to REVIEW EXECUTIVE ACTIONS?

The court can only review purely ministerial acts and not discretionary executive acts. Suppose the president deicdes to veto certain legislation. This is a purely discretionary ministerial act.

ARGUMENT FOR JUDICIAL REVIEW

1. It makes no sense to have a constitution if every law passed by congress was valid; 2. Judges are sworn to uphold the constitution (but congressioanl memebers also take thes oath); 3. It is the least dangerous branch because it does not have the power of the purse, military, or the power to execute court rulings.

Define: The COUNTERMAJORATORIAN DIFFICULTY

The unelected court can step in and say that a statute passed by a democratically elected congress and president is unconstitutional.

WHY is it UNCLEAR that the FOUNDERS MEANT for JUDICIAL REVIEW?

1. JUDICIAL REVIEW is NOT STATED in the CONSTITUTION. Marshall's pen in MARBURY careated this power. 2. If state govermentents did not give this power to their own courts (only 1/2 granted judicial review) why would they give it to the national branch?

What did MARBURY V. MADISON establish?

JUDICIAL REVIEW--giving the court the power to interpret the Constiitution and determine whethe rcertain congressional and presidential actions are constitutional--created by the court while negating an act to be unconstitutioanl and ruling in favor of Jefferson based on teh merits.

What are the 3 different interpretations of the 2nd amendment: "A Well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

1. COLLECTIVE RIGHTS: Gives the right of the State to organize a militia. The SILVERIA court follows this. 2. SOPHISTICATED COLLECTIVE RIGHTS (or limited individual rights): Includes a limited version of individual rights to bear arms that is only exercised by taht individual when he or she is part of an organized militia. 3. INDIVIDUAL RIGHTS: The right of an individual, including a citizen, to keep and bear arms. the EMERSON court interprets the 2nd amendment in this way.

What did the EMERSON court emphasise in its interpreatation of the 2nd amendment? "A Well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

EMERSON: "People" i. The emphasis is added on “the right of the people” to point out that the individual rights approach would fit the literal meaning the people themselves. ii. The Court also takes significance as to where these words (of the 2nd Amend) appear in the Constitution. Since they appear in the Bill of Rights, it would be a good indication that these words supported an individual right like the other amendments.

What did the SILVEIRA court emphasise in its interpreatation of the 2nd amendment? "A Well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."

SILVEIRA: "A well regulated militia" i. Supports collective rights approach b/c ‘militia’ is used as it has ordinarily been defined, i.e. to describe an organized state militia. See Emerson’s response to this in original intent/meaning. ii. For the word “people,” the interpretation would be that it meant the state (Exactly what Emerson did for the word “Militia”).

What are the POSSIBLE SOURCES OF MEANING that we can look at to INTERPRET the CONSTITUTION?

1. PRECEDENT: many justices and judges will decide the prior decisions of the court. 2 TEXT (Most important of all interpretations): look at the specific text of the constitution 3. HISTORICAL CONTEXT: to see why the people made the amendment. Motivating event? 4. ORIGINAL INTENT: there could be other documents out there that we could look to that put a gloss on what the framers intended. What the framers thought. 5. SOCIAL POLICY NEEDS: What was due process 200 years ago may be different from what it is today. 6. ORIGINAL MEANING: what the words meant when the document was drafted. What the framers did. 7. CONTEMPORARY VIEWS: what the words mean today. 8. TRADITION: don’t look exclusively back at what was going on in the 1800’s but we also don’t look at what was going on today.

What are the THREE different THEORIES of differently INTTERPRETING THE CONSTITUTION & deciding what srouces to emphasize.

1. Originalism; 2. Original Meaning; 3. Non-Originalism

Define: ORIGINALISM

ORIGINALISM: Emphasizes the text of the Constitution and possibly the original intent of the founders. We can look further to powers that were clearly stated in the Constitution or implicit in the framer' intent. There was original meaning to it,a nd this theory is trying to fure out what it is.

Virtues: ORIGINALISM

ORIGINALISM is good because i. Limits the Court’s ability to strike down popular legislation. So it is pro-majority; important decisions need to be decided by an ELECTED majority.ii. The Court is not elected. This approach, it seems, would give them a bit of discretion, but limiting.iii. Although it usually upholds statutes, an originalist will sometimes say the Constitution does not give Congress the power b/c of a narrow interpretation.

Problems: ORIGINALISM

ORIGINALISM is bad because i. Can be less protective of the rights of the minority. But the Constitution was designed to check on the majority rule. ii. But where there is no original meaning as in the 2nd Amend, there are often times choices where judges may impose their own values. And as seen from the two previous cases, an originalist can interpret a case either way. iii. It is also often times difficult to define the framers’ intent.1. Some framers however, wanted to destroy the notes that we now use to interpret their intent.iv. Which framers will we emphasize since they had differing opinions as to how the Constitution should be interpreted?

Define: ORIGINAL MEANING

Definition: the meaning of the Constitution is reflective of the practices of that time. ii. What did they actually do during their time?

Problems: ORIGINAL MEANING

iii. Problems w/ this approach [including interpretation of constitution as it was interpreted back then] 1. Having a woman be President when the Constitution in its text states “he.” 2. The Constitution mentions raising an army but nothing about an airforce. 3. It also says nothing about paper money, only coin money

Define: NON-ORIGINALISM

Definition: judges may protect values that neither are expressly stated nor implied in the text, nor intended by its framers.

Virtues: NON-ORIGINALISM

i. It would keep the Constitution up to date

Problems: NON-ORIGINALISM

1. Even if judges tried to keep the Constitution up to date w/ majority views, it would be difficult to tell what contemporary views are. 2. This theory provides a lot of discretion to un-elected judges.

What is the DIFFERENCE in the APPROACHES of the ORIGINALIST and the NON-ORIGINALIST?

originalists would look to text, structure, other historical documents, and practices of the time; non-originalists would also look at these but also at contemporary views. THIS ANSWERS THE QUESTION OF: Should change only be possible through a constitutional amendment, or through the interpretation of the text of the Constitution?

WAYS CONGRESS AND the PRESIDENT can CHECK the power of the COURT

a. Appoint Justices that agree w/ Congress and the President b. Impeachment of judges c. Pack the Court, add more judges d. Revise laws that were ruled unconstitutional e. Cut a court’s funding f. Advocate before the Court g. Limit the Court’s jdx (MOST mechanism to limit Court power of JR) as determined by Art III, § 2

What is: US Constitution -- Article III, Section 2.

Art III, Section 2. In all cases affecting Ambassadors, other public Ministers and Consuls, and in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

3 different READINGS of EX PARTE McCARDLE

(Editor critical of Reconstruction; Habeas corpus case) 1. From the ruling, the Court seems to be saying Congress can limit the Court’s jdx—by repealing the statue (1867 writ to hear before court) that had given jdx. 2. Another way of reading the case is, if Congress created two routes—such as the Statute of 1867 (permitting the Court to hear cases of habeas corpus relief) and the 1789 Judiciary Act (permitting the Court to hear denials of habeas corpus), and only took one away, the other one gives the Court the ability to still have jdx. YERGER was different outcome b/c he mentioned the 1789 Act and McCARDLE mistakenly did not. 3. Another way of reading McCARDLE limitedly, is Congress does not have the power to limit jdx at will—prevent the Court from its most important functions, but it has the power to limit original and appellate jdx just as long as it does not go too far—to take away some of that workload for administrative convenience could be acceptable.

What are ARGUMENTS to be made AGAINST congressional power to LIMIT a court's JURISDICTION?

1. GIVE Art III Section 2. “In all other cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” A NARROW interpretation where it may be argued “such exception, and under such regulations,” is only narrowed to limit the Court’s appellate jdx in making changes to issues of fact but not of law.. 2. JR would be meaningless if Congress could strip all appellate jdx from the Court. The provision states “exceptions,” so there has to be some ability of the Court to be able to review constitutional issues.

What is a CASE that LIMITS congressional power over the courts and how does it do that?

1. UNITED STATES V. KLEIN (loyalty, presidential pardon for recovery of property) 1. Key holding: Congress cannot step in and tell the Court how to decide particular cases—upon proof of pardon; if the Court has jdx to hear those cases—ceased property, then it should be able to decide on its own. HOW COULD the court reaching the congressional goal in mind while being constitutional and not infringing into the Court’s power? 1. Congress can strip court jdx to hear certain types of cases—e.g. recovery of property—and create an agency w/ limited discretion. 2. Modifying the original statute and setting up criteria as to who would qualify for a claim.

What is a CASE that LIMITS Presidential power to limit Court’s Jurisdiction?

PADILLA case…. 1. The government charges him w/ terrorism charges; Padilla’s argument was he couldn’t be detained indefinitely w/out being charged as a U.S. citizen—but then Bush brought criminal charges. Now the Court can’t hear cases that are effectively moot b/c the facts have completely changed.

What are the INHERENT PRESIDENTIAL POWERS? In where are they stated?

Stated in Article II of the constitution. Powers of the Executive branch as stated in Art II [NOTE Con authority]: a. The President is Commander in Chief of the Army and Navy b. He is the executive in general c. Power to appoint executive officials d. Power to grant pardons e. Veto legislation, make recommendations, and sign laws f. Make treaties g. State of the Union address h. Convene the Congress i. Receive ambassadors and other public ministers

What is the DISAGREEMENT between two FRAMERS of the Constitution about whether the PRESIDENT have additional POWERS that are NOT MENTIONED in the CONSTITUTION or by a statute of CONGRESS (inherent presidential powers)?

MADISON thought the President did not have any additional powers. HAMILTON thought the President did have additional powers. He pointed out that unlike in Art I Section 1 that deals w/ Congress, where it states “All legislative Powers herein granted . . .,” was not mentioned in the executive article II. Therefore, the difference in wording between Art I & II reveals that the framers intended to create inherent presidential powers.

What is JUSTICE BLACK's approach in YOUNGSTOWN about whether the PRESIDENT have additional POWERS that are NOT MENTIONED in the CONSTITUTION or by a statute of CONGRESS (inherent presidential powers)?

Justice Black (narrowest view) = The only powers the President has are those conferred by the Constitution or an act of Congress.

What is JUSTICE DOUGLAS's approach in YOUNGSTOWN about whether the PRESIDENT have additional POWERS that are NOT MENTIONED in the CONSTITUTION or by a statute of CONGRESS (inherent presidential powers)?

Justice Douglas (concern for structure of powers) 1. The President has some inherent powers, but these powers cannot usurp the powers of another branch. 2. If the other branch is silent, it will be up to the Court to decide whether he has gone too far. a. This empowers the Court 3. If Congress disapproves, the answer would likely be that the President doesn’t have the power (agreeing w/ Black). 4. Even if Congress approves, the Douglas model would second guess this approval, and check to see if Congress ceded some of the power that constitutionally belongs to it. a. In comparison to Black model, congressional approval would be satisfactory for Black.

What is the JUSTICE JACKSON-FRANKFURTER approach in YOUNGSTOWN about whether the PRESIDENT have additional POWERS that are NOT MENTIONED in the CONSTITUTION or by a statute of CONGRESS (inherent presidential powers)?

1. When the Constitution is silent and Congress disapproves, the President can’t act. 2. If Congress is silent (& the Constitution), tradition should be looked at. In some cases yes and others no. a. If the President has traditionally exercised some power, now the President has that power. 3. When Congress approves by an act conferring power to the President, deference is made and not questioned.

In YOUNGSTOWN Sheet & Tube v. Sawyer (the steel seizure), what are the NAMES of the THREE distinct approaches of when the President can act?

Does the President have the powers of executive privilege? To what extent? What case was it in?

Does the President have powers of executive privilege? Yes but not absolute. 1. The privilege might exist but the Court decides the application of it (for ministerial acts—not discretionary). a. Like the Douglas model, there are two ways of violating the separation of powers: i. First, preventing a branch from doing its job properly, such as interfering w/ a criminal proceeding, in violation of judicial proceedings (NIXON). ii. Second, one branch assumes the powers that more properly belong to the other (YOUNGSTOWN). Unites States v. NIXON (Application of upper principles) i. Executive Privilege: the power of president to keep powers of correspondence w/ their advisors. The need to maintain secrecy.

What was United States v. Clinton about?

Paula Jones. There is no executive privilege against criminal prosecution made before or after the presidency ??

Can the President cancel certain provisions of a law w/out vetoing the entire bill for it to become law? Case and application of the law [youngstown]

Clinton v. City of New York---Line-item veto: canceling certain provisions of a law w/out vetoing the entire bill for it to become law. |||| Amending the statute after it has passed into law is unconstitutional b/c amending the law is essentially like passing a new law. a. It is a violation of Art I § §1 & 7, you have to go through the normal procedure—C passes a law and P signs it. b. C only has the power to pass new laws. c. Douglas approach: even C approves it has ceded its power. d. Jackson approach: no problem b/c Congress approves? 2. Breyer dissent: the President is just following the law according to the line item veto act; executing that earlier law (a different procedure than Art I § 7, but not in violation of it) 3. For Scalia, the real issue is whether Congress has unconstitutionally given some of its powers.

What is the NON DELEGATION DOCTRINE and what CASES enforced it?

Non-delegation doctrine: Congress cannot delegate its powers to agencies or the President. It is a rejection of the administrative state. 1. Giving decision-making powers to an administrative agency w/out curtailing their discretion would be an unconstitutional delegation of power. a. SCHECTER: “fair competition” is not a standard b/c it doesn’t offer some guidance as how to execute. b. PANAMA: provided no guidance for the exercise discretion.

What is the RULE in which Congress may delegate its decision making powers to Administrative AGENCIES?

Rule: When Congress gives decision-making authority to agencies, it must also provide an intelligible principle that these agencies must follow so as to not be in violation of delegating legislative powers, as stated in Art I §I 1. By providing an intelligible principle, you are limiting an agency’s power, giving them a lesser degree of leg power by cabining it. 2. How much guidance is enough? a. Very little b. It is constitutionally sufficient if Congress delineates general policy c. Specifies the public agency that is supposed to apply it.

Which CASE provided guidence as to the NON DELEGATION DOCTRINE?

Whitman v. AMERICAN TRUCKING--- Guidance for EPA w/ the goal in mind (intelligible principle) a. Scientific knowledge was a requisite to protect the public health. b. Specify for EPA c. Boundaries: 5 year review d. We recognize an ad agency like the EPA is performing these legislative functions. Sometimes executing the a law is like legislating. Since it’s impossible to draw the line, you have to permit the agency to regulate. i. “EPA clean up the air” does not provide any standard. ii. An intelligible principle must come from Congress. It is not enough that the EPA to restrain itself (it cannot set up a standard on its own—an intelligible principle—for broad authority given to it). It has to come from Congress.

Which section in the CONSTITUTION gives CONGRESS the power to MAKE LAWS and the PRESENTMENT POWER?

CONSTITUTION: Art. I, Sections 1 and 7 1. Section 1: “All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives.” 2. Section 7, cl. 2: Every bill that has passed both houses of Congress, shall be presented to the President before becoming law (Presentment Clause).

What did CHADHA say about the Congressional LEGISLATIVE VETO?

Chadha: a. Legislative veto was used solely by the House of Rep. which had the power to invalidate by resolution a decision made by the Executive branch. b. LEGISLATIVE VETO IS UNCONSTITUTIONAL i. Legislative veto was an action to be construed as legislative in character. Why? It dealt w/ altering rights and duties. 1. OPPOSITE VIEW: using the leg veto permits the Congress to restore rights and duties that a judge from an exec. Agency altered. However, this is a tenuous argument. ii. Legislation requires bicameralism and presentment. 1. All legislation must be passed by both houses of Congress and be presented to the President. iii. The one-House vote alters the legislative process as set forth in Art. I b/c it circumvents bicameralism and presentment. c. DISSENT a non-originalist position. Up until the late 1800s, you didn’t have these administrative agencies. So now that the Court has allowed to give these agencies these powers that were delegated by Congress, if we bended the rules in one context, why not give Congress a little bit more power to reign them in?

Alternatives for CONGRESS to control ADMINISTRATIVE AGENCIES aside from the LEGISLATIVE VETO.

i. Pass a law that would have the result in the same outcome as the one the leg veto would have provided. A harsh law. ii. Congress can strip the Court of JR. 1. Difficulty would arise to the flexibility that a court would have when there are exceptions to a law. iii. Reign in the discretion of (agency) judges by providing guidance. 1. But it is difficult to always provide guidance for many cases that are unique. iv. Cut an agency’s budget to see if an agency changes the way it regulates. v. Have some control over appointment power to fill admin agencies

How can the CONGRESS appoint EXECUTIVE OFFICIALS?

1. Congress can never appoint executive officials itself. 2. But under Art II Section 2, Congress can designate other executive officials (heads of agencies, e.g.) other than the President to appoint inferior officers having unfettered discretion.

What qualifies as an INFERIOR OFFICER?

What qualifies as an inferior officer? SEE Morrison v. Olson a. Low ranking b. Jdx is limited: authority to follow certain things. c. Short term duration in tenure and subject to the control of higher officials.

Why would Congress designate an executive official other than the President w/ the appointment power?

We are worried about the President being biased in investigating the investigation. They figure the President has too much power to get rid of these officials. The President controls all the executive officials. So maybe some independent counsel should have a little discretion.

Does the President have the power to remove a federal official? CASES involved?

Does the President have the power to remove a federal official? a. Yes. If the President can appoint an official, then he should be able to remove that individual. b. This is an inherent power (not a power granted in the Constitution; a non-originalist approach). c. MYERS v. United States (“POSTMASTER”) i. The President and not Congress, has better knowledge as to why an executive official should be fired. d. Humphrey’s Executor v. United States (“FTC COMMISSIONER”) i. But can Congress limit this power? 1. Congress can limit the President’s removal power as long as independence is wanted away from the President, or when Congress gives the power to the President to remove for good cause—P must have a reason for removal. 2. Congress can’t say an official can never be removed.

How should the Foreign policy, including war powers, be divided b/c Congress and the President?

Constitution is not particular b/w allocating these powers. i. Art I mentions a number of particular provisions for Congress. ii. Art II gives the President many powers. b. Constitution gives little light as to how these powers interact w/ each other. c. If you look at the original intent or historical documents, you don’t see much guidance. i. Why? The Founders at the time believed the country could be independent, self sufficient; they had plenty of resources to be isolationist. They didn’t think much about foreign policy.

Are the Foreign policy, including war powers, powers be treated any differently?

1. How should these powers be divided b/c Congress and the President? a. Constitution is not particular b/w allocating these powers. i. Art I mentions a number of particular provisions for Congress. ii. Art II gives the President many powers. b. Constitution gives little light as to how these powers interact w/ each other. c. If you look at the original intent or historical documents, you don’t see much guidance. i. Why? The Founders at the time believed the country could be independent, self sufficient; they had plenty of resources to be isolationist. They didn’t think much about foreign policy.

Are the foreign policy, including war powers treated like domestic affairs? CASE that follows?

CURTISS-WRIGHT i. FACTS: Congress passed a resolution that authorized the President to stop sales of arms to countries who were involved in the Chaco conflict. The President stopped sales of certain arms. ii. The President’s powers to deal w international affairs are less statutorily restrictive, and more vast and exclusive than they would be if domestic affairs were solely involved. 1. Even if there was a statutory restriction like the Boland Amendment to prohibit the P from acting, as a matter of whether this act was constitutional, the Court may not decide the issue b/c of political question. iii. For PRACTICAL PURPOSES, the Court gives or acknowledges the President has INHERENT presidential authority over international affairs.

What are the REASONS for the Curtiss-Wright Decision?

"iv. Reasons: 1. The P has better access to information than Congress. He gets daily briefings, controls CIA and FBI. 2. P is the symbol of the country. a. You want the country to speak w/ one voice, have consistency. b. As a practical matter, it’s better to negotiate w/ one person than 100 senators.

What are the APPLICATIONS of the YOUNGSTOWN models for the Curtiss-Wright Decision?

Youngtown models 1. The Jackson model is deferential and would approve. 2. Black would also approve. Congressional resolution would give P cover over constitutional grounds 3. NOT okay w/ Douglas model. a. It seems to usurp some power from Congress, and it may not seem Congress can delegate its powers. i. Case example: the resolution didn’t provide enough direction. The P could be seen as legislating. ii. However, even if this was an unconstitutional delegation of powers in domestic area, the Court states it would not be in foreign affairs. b. Under this approach, the Court can always step in and see if there is a violation of separation of powers. 4. The Court followed the Jackson model in Curtiss-Wright case. Foreign policy is an area that has been vast and exclusive to presidential power.

Define: TREATIES

Treaties: International Agreeement negotiated by the P but need 2/3 of Senate for approval. Most agreements w/ nations today are not treaties\ i. League of Nations was rejected ii. Nuclear test band treaty was rejected

Define: EXECUTIVE AGREEMENTS

Executive agreements: Internationl Agreements effective when signed by the P and the head of other foreign nation. i. E.g., declaring/recognizing the Soviet Union ii. Carter recognizing the PRC as the nation of China.

What is the limitation of an executive agreement?

If money is involved, Congress will want to approve any spending if an agreement requires it.

What is the CASE that gave power to the EXECUTIVE AGREEMENT? What happened?

DAMES & MOORE (“freezing Iranian assets but then agreeing to terms of tribunal”) i. Exec. Agreement had not been approved by Congress. ii. Is this agreement b/w Iran and the U.S. constitutional? Yes. iii. What Youngstown model does this resemble? 1. JACKSON model a. It looks like the P has inherent powers b/c he has traditionally made this action. b. The Congress has implicitly approved of this agreement. By looking at the Curtiss logic, it may make sense. i. The Court cites the fact that there have been previous agreements like this. It is saying this isn’t such a strong action, and the Congress has ACQUIESED; there is tradition—the P has settled disputes w/out congressional approval.

Define: CONGRESSIONAL-EXECUTIVE AGREEMENTS. Give and example of one.

Congressional-executive agreements: this is how things get done today. The P goes out and negotiates w/ a foreign nation, and then says he wants to submit this as law. The advantage is that you don’t need 2/3 of votes, you only need a simple majority of both houses. These agreements look a lot like passing laws. i. NAFTA is not a treaty. It’s a congressional executive agreement. If the U.S. would have needed 2/3 of Senate approval, it would not have passed.

When can the P use congressional-executive agreements/what has the court allowed them to be substituted as?

The Court has allowed these to be substitutes for treaties. The Court has said it’s constitutional.

Which CONGRESSIONAL article allows CONGRESS to DECLARE WAR?

Art I § 8 gives power to Congress to declare war

Which CONGRESSIONAL article makes the PRESIDENT COMMANDER in CHIEF?

Art II makes the P Commander in Chief

What is the WAR POWERS RESOLUTION (WPR)? What kind of QUESTIONS does it answer?

The War Powers Resolution (WPR) is Congress’s opinion on war making a. When may a P engage military forces? What is a declaration of war? And what is the Court’s role?

Under WPR, P can send in troops if

"i. Congress declares war ii. Statutory authorization iii. National emergency—caused by an attack on the U.S. or troops.

Under the WPR, What are the duties imposed on the P?

Report to Congress w/in 48 hours. P must divulge some info to Congress. Ideally, sending info before even before sending troops.

Under the WPR, What about bringing troops back?

After 48 hours of having sent troops, w/in 60 days the P must withdraw troops unless there is a declaration of war or statutory authorization. Congress may give an extension of 30 days.

Under the WPR, What else can Congress do?

Pass a resolution ordering the withdrawal of troops despite any declaration of war, an act, or emergency.

Congress passed resolution authorizing the P to after anyone involved in 9/11 attacks. WHAT ARE THE ARGUMENTS FOR AND AGAINST THIS RESOLUTION'S CONSTITUIONALITY?

i. You can argue on the wording of it as not having an intelligible principle. It seems to give the P very broad powers. He could have invaded any country. It seems to give him a blank check. ii. How would you argue on the other side? 1. There are some principles in the 9/11 resolution; there has to be a relation to 9/11. 2. Or you can say the nondelegation doctrine doesn’t apply to foreign affairs. Curtiss-Wright gives the P more power in this realm. You don’t need intelligible principle.

Under the WPR, If Congress passed a bill that day giving money to the military, right after 9/11, would this be authorization for the P to use the money to attack Afghanistan?

No. WPR requires specific authorization. A cong spending bill is not sufficient. ii. Similar to Youngstown where Congress had given money to fight the war. Just like in that case, here it would not be enough.

What are the constitutional problems w/ the WPR?

i. Congress may be stealing some of the P’s authority, violation of separation of powers. ii. One problem is that the Resolution gives Congress the ability to withdraw troops. This looks like Chadha, a legislative veto. It seems to have bicameralism but not go through the President, presentment.

From the WPR, Can chadha be distinguished?

The Constitution says it’s up to Congress to declare war, you don’t need the P’s signature, and here you can say the same.

Under the WPR, May Congress implicitly have the power to end conflict?

Maybe the P only handles the war.

What is the Formalistic argument for the WPR?

The Constitution only says that Congress has the power to declare war. Anything less than that (like an act) doesn’t count.

What is the Counter to formalistic argument for the WPR?

The Constitution mentions treaties but this is hardly ever done. It is much easier to do it through congressional-executive agreements. Therefore a declaration of war may not be the only procedure. [This reasoning is used by Justice Breyer in Line item Veto case]

What is the Court’s role if there is a conflict about WPR?

" This issue will not be hear—nonjusticiable; meaning this constitutional issue is left to the discretion of political branches. 1. E.g., impeachment—there is no appealing to the Court.

So why would the Court leave something like WPR to Congress and P?

i. Both will work something out.ii. One drawback is that it’s tough for Congress and the P to work out these issues.

What other option other than cutting the funding, does Congress have against P's WPR powers?

i. It may try to impeach the P. It may not work in a time of war.

Why else would the Court not want to speak to the WPR issues?

i. The Court doesn’t want to embarrass itself. It wants to protect the power it has; not issue some order that the Congress and the P may not follow. There may be a ripple effect, where other rulings will not be followed. ii. Courts don’t have any expertise over military matters. The Gov. seems to make this argument in Hamdi.

What CASE dealt with whether the President have the power to seize U.S. citizens and place in indefinite detention b/c the P deems him an enemy combatant?

Hamdi v. Rumsfeld 1. Facts: Hamdi was seized by N. Alliance and turned over to U.S. military. He was held in detention in U.S. soil w/out access to lawyers. He was locked up for a couple of years.

What were the Gov. claims two distinct sources of authority in HAMDI?

Gov. claims two distinct sources of authority a. P has authority as Commander-in-Chief to seize him, or perhaps his inherent presidential powers. b. P has congressional authorization i. AUMF authorized the President to use “necessary and appropriate force” against “nations, organizations, or persons” associated w/ the Sept 11 attacks.

In HAMDI, How do you make the argument that the use of military force provided by AUMF, can able the P to detain Hamdi w/out access to the courts? How does this relate to the P’s power to go out and find terrorist and fight the terrorist attack?

Hamdi was caught in the battlefield. The P says that if we release him he will go back and fight us again. b. § 4001(a) states that no U.S. citizen shall be detained except pursuant to an act of Congress. It requires that you have explicit authority. i. The Court thinks the P has an act that authorizes this detention w/out going into the explicit requirement. It reads the act somewhat narrowly 1. It has to be someone fighting against the U.S. 2. And you can detain him until the conflict is over.

In HAMDI, But what if the gov lost on their statutory ground? How would they argue for authority?

The P can make an argument for constitutional authority. Some of the Constitution doesn’t need congressional authorization; he has expansive foreign powers, you can cite Custiss Wright.

In HAMDI, May the P seize him and then deny him to the Courts to challenge the seizure?

The gov argues the courts’ role should be limited to deciding broad legal questions. Also, you give the government the benefit of the doubt when it comes to the facts, but as a matter of law, the Court can determine whether this seizure is appropriate

In HAMDI, How does the some evidence standard play in the court?

a. The government is saying all we need is some evidence, not even a preponderance. b. We will allow you to review our evidence, but the only determination is if that evidence be legally sufficient to hold him. The Court has to highly defer to the government’s view.

In HAMDI, what is Hamdi entitled to as the Court sees it?

The Court says that people like Hamdi are entitled to seek their freedom. He is entitled to notice of why he has been detained, an opportunity to be heard before a neutral tribunal. i. But there is a presumption of evidence in favor of the government—presume the evidence is correct. So you give the gov the benefit of the doubt in terms of the evidence. 1. However, Hamdi has an opportunity to rebut this evidence—a high standard to overcome. Hamdi can rebut this presumption before a neutral tribunal. At least he has some opportunity to rebut this evidence; due process requires it

In HAMDI, what is the bottom line of the President's congressional authority?

At the end of the day, the court says P has congressional authority, but the Court has the right to review this authority. We can give you the benefit of the doubt (the presumption of evidence is correct), but the ∆ has at least to have some opportunity to be heard for due process to be fulfilled (Mathews balancing test). It’s half a victory for the P, he doesn’t get unfettered discretion.

In HAMDI, what happened to HAMDI in the end?

The Gov settled w/ H, and so H didn’t ask for an opp to scrutinize the evidence

How does the President establish MILITARY TRIBUNALS?

Using EXECUTIVE ORDERS to establish military tribunals.

Who in particular is charged in a MILITARY TRIBUNAL?

1. Not U.S. citizens. a. P may think people like Hamdi have more rights 2. People affiliated w/ Al Qaeda who are committing these terrorist against the U.S.

How do military tribunals work?

1. The commission is created by the Secretary of Defense. The judges are military officers. 2/3 of the commission is required to convict someone. Usually you would need more than 2/3 in a criminal law. 2. What about the appeal process? You appeal to the P or Secretary of Defense. The normal evidentiary proceedings apply.

If you charged someone w/ aiding and abetting terrorist, would the ∆ prefer to be in military court?

No b/c the judges are military officers (the military has a vested interest; this may be a way of abusing individual rights cause they have to have a military attorney; a. The military tribunals diminish the process you get in a regular criminal trial). So there are troubling aspects as the points we earlier mentioned. See right above

How would we challenge the use of MILITARY TRIBUNALS using the DOUGLAS MODEL?

1. You can say this violates separation of powers b/c it usurps the Court’s powers. 2. Application of Douglas model: we don’t have to leave it to the P and C to decide on delegating their authority. Instead it would be up to the Court to decide. The court retains authority to strike down that authority. It’s the Court’s job to try every case. And by implication, the P may be usurping the power of Congress or the Court. a. How would we rebut this argument (Pro P authority)? i. They aren’t U.S. citizens. You can say this is part of the P’s powers of foreign policy. The Court says we throw out these rules (i.e. separation of powers, and delegation of power from one branch to the other) in an international context (Curtiss Wright case).

How would we challenge the use of MILITARY TRIBUNALS using DIRECT CONGRESSIONAL AUTHORITY?

Think of non-delegation from Congress to the President. What power are we looking at? a. Assuming Congress wanted to challenge P’s authority, Art I, section 8, it’s up to Congress to make these rules for capture. This isn’t something Congress can give to the President. You can cite these nondelegation cases. Another provision in ART I and III is that Congress has the right to create Courts. b. Or you can argue on a general principle of separation of powers.

SHORT SUMMARY: How would we evaluate/challenge the President's authority to create MILITARY TRIBUNALS?

President’s authority to military tribunals. If you try to challenge the exec order, you can say there is no statutory authority. Second, even if Congress had authorized military tribunals, there is usurpation from the judiciary; usurping the power of the court to hear appeals, or hear criminal cases. Or you can say that Congress is the one to set up these rules and courts. You can also say the P doesn’t have constitutional authority

How would we argue in FAVOR of establishing MILITARY TRIBUNALS?

1. Other than citing Curtiss-Wright –inherent P authority (see above), it may be said that the P also has the constitutional right for the use of military force (Art II, Section 2, cl 1—Commander in chief). This power may be read broadly (there is also a non-detention statute as there was in Hamdi).

How would Quirin (“German spies”) help either side evalate the CONSTITUTIONALITY of MILITARY TRIBUNALS?

1. Court’s holding: Although the P issued a proclamation, the Court held that it could decide through JR if the gov. could establish military tribunals. a. ∆s filed a habeas corpus to have the Court hear their case. b. Articles of war—an act of Congress—seems to say the P can create these military commissions. c. The Court doesn’t say if the P would have authority to do this as Commander in Chief or inherent power b/c he had congressional authority. 2. In comparison to Bush’s executive order a. Maybe Bush can use an unfettered authority b. You may say that Quirin is a limited authority for the P. In Quirin you have articles of war that specifically mention military tribunals. i. In Hamdi, it seems the P can get broad declarations of Power from the congressional statute—but not unfettered authority.

How did NIXON v. FITZGERALD answer whether the President can be sued for civil damages?

1. Holding: The P has absolute immunity. You can’t sue the P for what he did while being P and carrying out his duties in that role. a. The reason for this is that we are worried that the P would be spending his time trying to defend himself from these lawsuits, instead of focusing on his job. i. Dissent argued that the P shouldn’t be above the law.

How did CLINTON v. JONES answer whether the President can be sued for civil damages?

1. Clinton v. Jones a. Holding: A P may be sued while in office for previous private actions when he was not P. b. Providing immunity for official acts, Fitzgerald, while in office is not applicable for previous unofficial conduct. i. The Court is silent on whether a P could be sued for private conduct while being P. c. In the event that a P would have immunity for previous actions before he became P as well as immunity while being P for official conduct, remedy could still be sought by suing lower level officials who do not have immunity. i. E.g.: the State of Arkansa, lower officials 1. It may deprive you of your target, but your case is not completely dead.

How does the Court's power to review the P’s actions—JR affect presidential IMMUNITY to CIVIL DAMAGES

a. “Where there is a right being violated, there has to be a remedy.” Marbury was cited in Fitzgerald. i. As the Court discussed in the Jones case, although a P may be sued for previous unofficial conduct, there is very little risk that frivolous litigation will occur. There are enough judicial barriers like summary judgment and sanctions to prevent this.

What are the ways which would keep the President in check from his misconduct in office even if given an absolute immunity from civil actions commited while President?

"a) Impeachment b) Public scrutiny by the press c) Oversight by Congress d) A President’s concern for seeking re-election e) Maintain presidential influence f) And his stature in history |||| These alternative remedies show that the President would not be “above the law” if were given absolute immunity

Can you prosecute the P criminally if he leaves office? Why?

However, it seems you can’t criminally prosecute the P even if he commits some crime; it will have to be after he leaves office. Hamilton states that the P could be prosecuted for crimes after he left office. You can imagine there are thousands of district attorneys, and it would be dangerous to give them this power to throw the P in jail.

Is there is a possibility that Congress may be able took lift or take away this absolute immunity—for official conduct?

Yes. There is a possibility that Congress may be able took lift or take away this absolute immunity—for official conduct.

What is an IMPEACHMENT and HOW is it DONE?

a. It seems the Constitution gives the Congress the power to throw the P out of office by impeachment. b. Impeachment means indictment for some impeachable offenses. The House acts as sort of a prosecutor, and the Senate acts as a jury.

What is an impeachable offense? Where is the authority for this from?

Art II, §4: “The President, Vice President and all civil Officers of the United States, shall be removed from office on impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” 1. Treason and bribery means that an impeachable offense has to be a crime. a. It has to be a serious crime. 2. What about “misdemeanors”? a. It may suggest that it can be a petty offense; but this term had a different meaning 200 years ago. 3. Can any serious crime be an impeachable offense? a. You might say it has to be a serious crime that has to do w/ his official actions. They have to be things that effect the P’s performance or functions. 4. The Redeno Report a. The term “high crimes and misdemeanors” has a distinct English common law meaning: an action taken in an official capacity that does damage to the state. So it doesn’t have to be a crime.

What did FORD say an IMPEACHABLE offense is?

Ford said that an impeachable offense is whatever the House of Representatives and the Senate consider it to be. Ultimately, he seems to be right.

What was IMPEACHABLE OFFENSE during Clinton’s impeachment? For and against his impeachment?

1. In Jones deposition, Clinton denied having had sexual intercourse. 2. Was this an impeachable offense? a. House thought so: perjury against grandjury, and the other obstruction of justice. i. Perjury to grand jury ii. Tampering with witnesses to cover his affair with Lewinsky iii. Perjury in civil deposition iv. Lied to congress 3. Argument AGAINST this being an impeachable offense a. You can say that he was acting as a private citizen (Jones), and therefore not what the Redeno report stated. b. This didn’t have an affect upon the nation. This was not to the level of high crimes: treason or bribery 4. On the other hand, you can argue that the P is saying I’m above the law.

What is the COURT's ROLE during the IMPEACHMENT process?

The Court’s NON-INTERVENTION role 1. The Court will not intervene on impeachment proceedings. It is a political question—a constitutional issue best decided by the other branches.

What is FEDERALISM?

Division of power between state and national governments (federalism) III. Congressional power and state-regarding limitations upon it

Why is there an advantage to maintaining a state government over a national goverment?

State’s laws may better conform to the wishes of the people.\\\\ ii. The idea is that local officials are better responsive to what the people want. 1. States are laboratories of democracy. \\\\ a. States can come up w/ new ideas and test these policies out (before they can be tested on a national level). b. If these policies work in one State, then other States can follow. c. However, this value is not particularly good for federalism b/c at the end of the day you’ll know what works and enforce that rule on the States. \\\\ Federalism also serves to protect against federal tyranny. 1. States can rally opposition to federal laws. At least we have the states as an organization that can counter that.

Example for GREATER STATE AUTONOMY: Suppose you have State B is in favor of physician-assisted suicide by a majority of people in its State. And you have States A and C who are against it in their State by the majority of people there.

State A For 60 Against 40 \\\\ State B For 80 Against 20 \\\\ State C For 30 Against 70 ---- Total added = 150 in favor, 130 against 1. Accordingly, if there was a national referendum, this policy would be adopted b/c adding the majority of people from all these States, would create a national majority. Notice however, that the major support came from State B, and that the majority form A and C although against, would have to conform to it. 2. But if left to State governments, the peoples’ preference would be tailored to their own state.

Why weren’t the framers worried about state tyranny?

Maybe the federal government can check the states—civil rights. And if a state becomes tyrannical, you can always leave to another state when you have many states.

Are the people really closer to these officials than federal representatives?

These state officials are also representing thousands of people in their districts. The more you satisfy people’s preferences, you leave it to the states

Benefits of uniformity from federal government

1. Foreign affairs could best be handled this way. a. You might say that it is silly for each of the 50 states to come up w/ their own foreign policy, their own weapons; instead it’s much cheaper to pull your resources. 2. Insurance policy, to help a state in need. 3. You have collective action problems that can be overcome. a. No state is going to act individually. They will try to free ride off of another state, but no one will do anything. 4. Currency standardization. 5. Conflict resolution, to solve disputes b/w the states (you can’t create tariff barriers). a. Suppose the state of NJ has a bad pollution policy. But the people in NYC suffer. The national government can have a national law that states all states will abide by the same environmental rules and not have outlier states that pollute.

In McCULLOCH v. MARYLAND (The federal leg power), How does M deal w/ Maryland’s argument that Congress lacks power to charter a national bank b/c the Constitution does not mention congressional authority can be used this way?

NON-ORIGINALIST APPROACH ----- The Constitution should not be read as a statute, instead it is an outline of the powers of the federal government. 2. Maryland’s other argument is that Art I “All powers herein granted” suggests those are the only powers Congress has; a ceiling on their power. a. M says that under the Articles of Confederation, the constitution had limited congress’s power. There was much more strong language in the articles. But the fact that the framers left that language out of the Constitution, says something. i. Silence is not deadly. The framers could not have anticipated what would come up. b. Concomitantly, Art I §9 sets restrictions on Congress. This shows there must be some powers delegated to Congress otherwise not stated in the Constitution. B/c it would not make any sense to have provisions that limit congressional power.

What does the NECESSARY AND PROPER CLAUSE of the constitution do?

Rule of Law: Under the Necessary and Proper Clause, Congress may enact legislation so long as its ends are legitimate under the Constitution and the legislation is appropriate and plainly adapted to those ends. Congress may take convenient action in the form of legislation to exercise its enumerated powers.

Define: The “NECESSARY AND PROPER” Clause. Where is it? What does it say? How does McCULLOCH use it?

Art I §8 cl. 18 states that Congress shall be able “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” i. M broadly interprets “necessary” to mean Congress can take convenient actions. ii. “Proper” is interpreted as the ends being legitimate—expanding Congress’s power. iii. Therefore, the Necessary and Proper Clause gives Congress the power to find a convenient way to further its enumerated powers. The Clause is placed among the enumerated powers in the Constitution. iv. If the ends are legitimate, Congress can pursue its means to reach its ends.

Under McCULLOCH, why do the States not get to determine what power Congress has or does not have?

the States not get to determine what power Congress has or does not have b/c the “people” created the Constitution, and Congress. The States were just acting as agents.

Under McCULLOCH, why do the States not have the power to tax the federal bank?

"1. If Maryland would have the power to tax, it would have the power to destroy. a. If the State were to be able to tax the bank, it would be taking money away from the federal treasury, money from other states, and these would not have representation. No taxation w/out representation.

What does the SUPREMACY CLAUSE of the constitution do?

If there is some incompatibility b/w the federal and state law, the federal law trumps b/c of the Supremacy Clause.

What is the COMMERCE CLAUSE and what does it SAY?

Art I §8: “Congress shall have power . . . To regulate commerce with foreign nations, and among the several States, and with the Indian tribes.”

What were the dates of the FIRST ERA of the COMMERCE CLAUSE?

FIRST ERA: Commerce Clause pre-1937

How was the COMMERCE CLAUSE interpreted in the FIRST ERA?

During the first era, the Court interpreted Congress’s powers very expansively. It did so in order to break down trade barriers by States. 1. How is the Commerce Clause defined by the Court? a. Congress has the power to regulate among the states—more than one. b. Commerce is NOT limited to just buying and selling, exchange of goods and services. c. Commerce extends to INTERCOURSE, including navigation and transportation.

What was the CASE and what was the HOLDING that defined the FIRST ERA of the COMMERCE CLAUSE?

"Gibbons v. Ogden (FIRST ERA: 19TH Century to 1890) a. Congress has the power to regulate among the states—more than one. b. Commerce is NOT limited to just buying and selling, exchange of goods and services. c. Commerce extends to INTERCOURSE, including navigation and transportation. --NOTE: along with a limited interpretation of the 10th amendment (on another card)

COMMERCE CLAUSE FIRST ERA: What are the limitations if any the 10th Amendment the may have on congressional power?

What are the limitations if any the 10th Amendment the may have on congressional power? a. The 10th Amendment is just a reminder of Congress’s enumerated powers. b. Two distinct views in interpreting the 10th Amendment i. Congress can only exercise its enumerated powers. ii. The Amendment imposes some affirmative limitations 1. First, whatever Congress is regulating has to be commerce. 2. And it has to be among the States. c. However, some would argue that the 10th Amendment imposes limitations even when it is commerce and among the States, parts of that area cannot be regulated by Congress. d. Marshall states that Congress’s powers are plenary.

What were the dates of the SECOND ERA of the COMMERCE CLAUSE?

SECOND ERA: 1890 to 1937

COMMERCE CLAUSE SECOND ERA: What was the major COURT DISTINCTION between the "stages of commerce" at this time?

COMMERCE CLAUSE SECOND ERA: What was the COURT's APPROACH during this era?

During this era, the Court adopted a more laissez faire approach. There should not be a regulation of free market.

CC SECOND ERA: What was United States v. E.C. Knight (“merger of sugar refinements”) and its HOLDING?

United States v. E.C. KNIGHT (“merger of sugar refinements”) 1. Congress cannot regulate manufacturing activities under the Commerce Clause even if they travel through interstate commerce. a. The difference here is that the operation of commerce plays a secondary one to that of manufacture of sugar. Therefore, commerce is not controlling, it is only incidental and indirect. b. Monopoly may only be regulated when it has to do w/ the operation of commerce. i. But these big merging companies had a lot of market power to jack up the price. [ they may have merged for efficiency] 1. This would have an enormous impact on the buying and selling in commerce. ii. Congress’s goal was to regulate manufacturing to create competition and have better market prices.

CC SECOND ERA: What was Carter v. CARTER COAL (trying to set max hours and wages for mining”) and its HOLDING?

Carter v. CARTER COALl (trying to set max hours and wages for mining”) 1. According to this Court, regulation of commerce would be exercised over the means serve for intercourse that includes transportation, purchase, sale, and exchange of commodities b/w citizens of different States. 2. Manufacturing/production and labor relations are purely local in nature and remain so even after these goods travel through interstate. 3. Congress cannot regulate manufactured goods just b/c these goods will later go into interstate commerce. The Court seeks to make a distinction b/w what takes place before buying and selling to restrict congressional regulation even if this activity has an effect over selling in commerce. Although this activity that leads these goods into interstate commerce is interrelated to commerce, it is too indirect. a. How can it be argued against this and say this is a regulation of commerce? i. What goes on beforehand is important for what takes place later on in commerce.

CC SECOND ERA: What was Schechter Poultry and its HOLDING?

SCHECHTER POULTRY: 1. Facts: 96 % of the live poultry came from other states to New York City. ∆s purchased the poultry from commission men for slaughter and resale to local retail poultry dealers and butchers. Congress tried to prohibit child labor and bundle sick chickens w/ healthy ones. 2. Congress cannot regulate buying and selling that is done LOCALLY. Although this activity may have an effect over interstate commerce, this is INDIRECT—when this is the case it is LEFT TO THE STATES to regulate. 3. The key reason is that you have to regulate Congress’s power. There has to be some activities left to the States. a. How could you say that Congress HAS the power to regulate? i. These chickens come from other States and into N.Y. These businesses can get away w/ a lot more by using child labor and have a competitive edge. Even though it is a purely local activity, it will have an effect over commerce.

CC SECOND ERA: What was Schechter Poultry's SUMMARIZED HOLDING?

Court’s reasoning • There is no continuity in the flow of interstate commerce after the poultry has arrived from other states, and is then used for “local disposition.” “The poultry has come to a permanent rest w/in the state.”; the flow had ceased. • The poultry bought by ∆s was not used or sold for “further transactions in interstate commerce.” The Court defines interstate commerce taking place when goods are only temporarily w/in a state, and then continue in the stream of interstate commerce. It is in this circumstance that federal regulation is applicable

CC SECOND ERA: What was Houston, East & West Texas Railway (“The SHREVEPORT Rate cases”)and its HOLDING? How was it DIFFERENT from SCHECHTER POULTRY?

Houston, East & West Texas Railway (“The Shreveport Rate cases”) 1. FACTS: The railroads were charging higher rates from LA Shereport to Dallas, than a similar distance w/in the state. The ICC was set up to regulate both interstate and intrastate routes. This has a direct effect since the intra state and interstate routes compete with each other. To be fair, the transportation costs should be the same. 2. Wherever the interstate and intrastate transactions [of carriers] are so related that both Congress and the state have sought to set rules of regulation, those of the federal government will SUPERSEDE any state regulation. a. The intrastate rates have a DIRECT EFFECT over interstate rates. i. The Court is concerned w/ competitive edge locals get w/ these rates over those who do business through interstate—Shreveport. 3. Can this case be DISTINGUISHED from POULTRY? a. A distinction is that the size of the impact is so much greater when dealing w/ railroads. b. In Poultry it was only an indirect impact on commerce, whereas here it was direct. i. The Court has a problem determining what a direct effect is.

CC SECOND ERA: What was Hammer v. Dagenhart and its HOLDING? What general QUESTION did this case ADDRESS?

Champion v. Ames (“the lottery case”) a. The trafficking of tickets is a subject of commerce. As long as Congress is focused on that interstate component, shipment of tickets across state lines, Congress can regulate. b. The act is not inconsistent w/ the 10th Amendment b/c “the power to regulate commerce among the states has been expressly delegated to Congress” under the Commerce Clause. i. The power of Congress to regulate commerce among the states is plenary. c. It must be said that lottery was viewed as gambling and morally distasteful. |||| ADDRESSED: Does the 10th Amendment have a role?

CC SECOND ERA: What was Hammer v. Dagenhart ("Child Labor CC Case") and its HOLDING? What general QUESTION did this case ADDRESS?

Hammer v. Dagenhart a. The congressional regulation was to prevent items manufacture by child labor. b. The Court states that b/c the child labor production ended before the manufactured goods were transported, “and the mere fact that” the goods “were intended for interstate transportation does no make their production subject to federal control under the commerce clause.” c. The police power of the State is protected by the 10th Amendment. (The Commerce Clause does not give Congress the power to force the states to use their police power to deal w/ a local issue as child labor.) i. The bizarre rationale used by the Court is to flip the 10th Amendment on its head. The Court says yes this is commerce in regulating shipment, but you can’t regulate b/c you’re having an effect on the power of the state to regulate if it so chooses. It goes against the Supremacy Clause. It seems the opposite that if a federal law is inconsistent w/ a state law, you throw the federal law away. |||| ADDRESSED: Does the 10th Amendment have a role?

CC SECOND ERA: How was Hammer v. Dagenhart ("Child Labor CC Case") DIFFERENT from POULTRY? How was it DIFFERENT from LOTTERY?

Hammer DIFFER from POULTRY i. The regulation in Hammer isn’t regulating production as in Poultry, but only that you can’t ship these goods in interstate. ii. Unlike in Poultry, it was an outright regulation of labor. |||| DIFFER from LOTTERy In comparison to the lottery case, here it says there has to be something left to the States to regulate.

The Solicitor General argued that there was a race to the bottom. Each state wanted to regulate child labor, but it did not want to be the only one to do so. In fact what Congress was doing was helping the states. B/c if all other states didn’t follow suit, it would be at a disadvantage. Some would argue that the Court didn’t want interference of economic affairs.

CC SECOND ERA: General POLICY RECAP

Recap on second era: The Court says that commerce among the states is only buying and selling, and navigation. It can also regulate activities that aren’t necessarily commerce but activities that have a direct effect on commerce among the states. And even among that narrow sphere of authority, Congress still can’t regulate that activity if it impedes the powers of the state. We also talked about how this commerce as opposed to production, direct and indirect effect, was hard to define. It also seemed the Court didn’t like these policies for economic reasons.

CC SECOND ERA: General CONSTITUTIONAL concern RECAP

Further Recap on 2nd Era: the Court said that Congress may only regulate interstate commerce—buying and selling among the states. It said Congress can regulate intrastate activities if it had a direct effect on interstate commerce. But it can’t do so in a way that interferes w/ the state’s power to regulate. The Court would use the 10th Amendment, as reserving some powers to the states. There were a number of pressures that led to the Court abandon this approach: the depression, the court packing plan.

What were the dates of the THIRD ERA of the COMMERCE CLAUSE?

THIRD ERA of Commerce Clause: 1937-1991

CC THIRD ERA: What was JONES & LAUGHLIN STEEL and its HOLDING?

Jones & Laughlin Steel: Congress had the power to regulate employer-employee relations despite the fact that it was a manufacturing business. The Court is abandoning previous cases b/c although it has an indirect effect on commerce b/c of labor strike, it still has an effect. The Court cites a bunch of statistics as saying this company is an interstate company. It has operations in various states. Therefore it must be under the purview of commerce; so this case may not be too far from the previous cases. One way to interpret this is that the Court doesn’t care what kind of activity it is: production or commerce. What it cares about is whether it has an effect on interstate commerce.

CC THIRD ERA: What was WICKARD v. FILBURN and its HOLDING?

Wickard v. Filburn ---- [most extreme application of Congress’s power] :Even if the activity is LOCAL and though may NOT BE regarded as COMMERCE if it has a SUBSTANTIAL (CUMULATIVE) EFFECT on interstate commerce, Congress may regulate these activities. 1. It doesn’t care whether these activities are local. All that matters is if it has a substantial effect on commerce (it can be indirect and local in nature). a. The case is important b/c it overrules previous cases: abandons distinction b/w commerce and production, direct and indirect effect. 2. The question in this case, did this farmer have a substantial effect on interstate commerce? a. When it talks about substantial effect, it is a SUBSTANTIAL CUMULATIVE EFFECT. This one farmer may not have much of an impact, but all these farmers collectively if they home grow their wheat, would have a substantial effect. Even if this guy doesn’t sell his wheat, he (and taking others similarly situated; in the aggregate) is reducing demand b/c he/they won’t go out into the market and buy wheat.

CC THIRD ERA: What was DARBY and its HOLDING?

DARBY 1. Facts: The Court upholds the Fair Labor Standards Act. Congress said you can’t ship interstate lumber [this is production] made by people below minimum wage. The act sets a minimum wage for factories. 2. Explicitly overruled Hammer v. Dagenhart 3. The 10th AMENDMENT is only a “truism that all is retained which has not been surrendered.” 4. It doesn’t matter that Congress was regulating production (don’t care whether it was direct or indirect, or state control); what matter is that Congress was regulating activity that had a SUBSTANTIAL EFFECT on interstate commerce. a. Congress’s powers to regulate commerce are PLENARY. Gibbons v. Ogden i. NOTE: The Court today seems to focus on the nature of the activity: it has to be economic—similar to Dagenhart.

CC THIRD ERA: What was HEART OF ATLANTA MOTEL and its HOLDING?

HEART OF ATLANTA MOTEL 1. SUBSTANTIAL EFFECT applied: There was sufficient evidence to show that discrimination had a SUBSTANTIAL EFFECT over interstate travel by minorities. a. Finding lodging was burdensome, to the point where it discouraged interstate travel by Black Americans. 2. B/c the motel served interstate travelers (75%), Congress was in its right via the Commerce Clause to prohibit this type of (PRIVATE) discrimination. a. Although the Commerce Clause may have been a mere pretext to prohibit this type of discrimination, the Court doesn’t care about legislative motive as long as the substantial effect test is satisfied.

CC THIRD ERA: What was KATZENBACH (“THE BARBEQUE RESTARANT”) and its HOLDING?

Katzenbach (“The barbeque restaurant”) 1. SUBSTANTIAL EFFECT applied: The meat being served by the restaurant has moved through commerce. And although this restaurant’s small volume of meat may not seem like a lot, putting this volume w/ other restaurants similarly situated, it has a substantial effect over interstate commerce.. a. Congress could regulate and prevent racial discrimination b/c this has had an adverse effect over commerce. i. Testimony showed that when restaurants engaged in racial discrimination, less interstate goods were sold and it affected the business in the area in general. b. Congress can regulate an activity which has a substantial effect over interstate commerce (doesn’t matter it it’s local). And it can prevent racial discrimination, thus exercising its power, to protect commerce.

CC THIRD ERA: What was NATIONAL LEAGUE OF CITIES [OVERRULED by Garcia case] and its HOLDING?

National League of Cities [OVERRULED by Garcia case] 1. The 10th Amendment preserves some State autonomy. Some functions are essential and independent to the States, and not answerable to the federal government. a. Traditional governmental state functions would be immune from the Commerce Clause. b. State sovereignty is a limit on the commerce power. i. Even though these activities—paying and hiring more state workers—have a substantial effect on interstate commerce—workers spending on all sorts of goods, it would disrupt the operations of a State.

CC THIRD ERA: What was GARCIA V. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY and its HOLDING?

Garcia v. San Antonio Metropolitan Transit Authority ---- 1. Congress can regulate state employment decisions as long as there is a strong federal interest. a. The law affects private and State employment decisions. 2. National League of Cities is OVERRULLED a. The courts had difficulty identifying what traditional state functions were. Applying this test proved unworkable. i. But this may not be a good reason for abandoning the test; there are other tests the Court has upheld even though it has struggled w/ them—obscenity (“I know it when I see it”) for example. 3. State participation in the federal political process insures that the interests of the States are taken into account (“the political safeguards of federalism”—federalism is a political question, not a judicial question). a. This political participation serves as a restraint on Congress’s exercise of its commerce power. i. States can block congressional legislation. 1. Example: Why might Congress not regulate physician assisted suicide if 51% supports regulation? Small states control a disproportionate number of seats in the Senate. There is a possibility these SMALL STATES MAY BLOCK CONGRESSIONAL LEGISLATION. You only need about 6% of the country to block legislation from moving through the Congress from states that can rally votes in the Senate. ii. The Electoral College: States have an indirect control on the House of Representative over electoral qualifications. iii. It is up to the States and the Federal government to deal w/ the appropriateness of federal regulation.

CC SECOND ERA: What were THREE CHARACTERISTICS of the COMMERCE clause INTERPRETATION during this period?

i. You need commerce power to regulate everything. Everything is of the congress. Court struggles to find some limitatsoin on congressos power 1. Commerce narrowly 2. Among the states very narrowly 3. 10th amendment restricts commerce among the staes.

CC THIRD ERA: What were the THREE major reasons for the CHANGE in the COMMERCE clause INTERPRETATION during the THIRD ERA?

Why Change: 1. They had a hard time explaining the doctrines in the commerce clause. Buzzwords like direct and indirect, but what does it mean? 2. economic pressures of the day: great depression 3. Political pressures: court packing. a. Justice owen Roberts: the switch in time that saved nine.

What were the dates of the FOURTH ERA of the COMMERCE CLAUSE?

FOURTH ERA: 1995 – present

CC FOURTH ERA: What was the overarching THEME of COMMERCE clause INTERPRETATION in the FOURTH era?

FOURTH ERA: 1995 – present [Narrowing of Commerce power & revival of 10th Amendment as a constraint on Congress]

CC FOURTH ERA: What was the major QUESTION of COMMERCE clause INTERPRETATION in the FOURTH era for LEGAL SCHOLARS?

Does this era, especially Lopez and Morrison, represent a significant departure or just do they just tweak it a little? NOTE: The 3rd era is still good law.

CC FOURTH ERA: What was United States v. LOPEZ, its general FACTS and RULING?

1. RULING: Congress has the power to regulate “among the states” when it is economic activity that substantially affects interstate commerce. 2. FACTS: The Gun Free School Zones Act of 1990, made it a federal offense for someone to carry a firearm if he knew or had “reasonable cause to believe” he was w/in a school zone. A 12th grade student showed at a high school carrying a concealed handgun.

LOPEZ: What are the THREE broad CATEGORIES where CONGRESS can REGULATE through its use of the COMMERCE clause [don’t describe them in detail]:

There are three broad categories where Congress can regulate through its use of the commerce clause: a. Regulate use of channels of interstate commerce. See e.g., Darby; Heart of Atlanta. b. Regulate and protect instrumentalities, persons, or things of interstate commerce even if these are intrastate activities. See Shreveport Rate Cases. c. Power to regulate those activities that have a “substantial effect” on interstate commerce.

LOPEZ: What are POWERS to REGULATE those activities that have a “SUBSTANTIAL EFFECT” on INTERSTATE COMMERCE? [do not list the exceptions here]

Power to regulate those activities that have a “substantial effect” on interstate commerce. i. The Court points out that all previous cases in terms of regulation of commerce involved economic activity that had a substantial effect on interstate commerce. Even Wickard ii. How is this case dealing w/ possible gun violence distinguished from Perez where the Court upheld a criminal statute barring loan sharking? 1. The distinction is b/w personal crime (Lopez) and economic crime (Perez). iii. The act seeks to regulate a non-economic activity through its commerce clause. iv. The act’s link to interstate commerce it too attenuated. 1. The fact that gun violence may impair education and hamper the national economy b/c our workforce will suffer, is not a strong link. v. The act also interferes w/ a State’s traditional function to regulate schools. (although the federal law only limits a State’s discretion

LOPEZ: What are the _EXCEPTIONS_ to the POWERS to REGULATE those activities that have a “SUBSTANTIAL EFFECT” on INTERSTATE COMMERCE? ie: EXCEPTIONS to possibly permit congressional regulation when an activity is not economic in nature, is an activity that is a traditional state function, or its link is too attenuated to interstate commerce

EXCEPTIONS to possibly permit congressional regulation when an activity is not economic in nature, is an activity that is a traditional state function, or its link is too attenuated to interstate commerce. 1. LEGISLATIVE HISTORY: a. If Congress would come up w/ findings on how this non-economic activity had a (substantial) effect over commerce, the Court may allow the congressional regulation. b. Although this is not necessary, it would be helpful. 2. JURISDICTIONAL ELEMENTS (easy to satisfy) a. Why would it satisfy this jurisdictional element, by having the Court uphold an act like this one if it was simply shown that this activity would affect interstate commerce? i. If Congress included such an element, the Court would have known how this activity affected interstate commerce. ii. It might be a wake up call to get Congress to think about these issues when it passes legislation Moreover, it would have also shown that Congress really studied the regulation. 3. REGULATED NON-ECONOMIC ACTIVITY IS AN ESSENTIAL PART OF A LARGER SCHEME/REGULATION: a. But why does this have to be essential in light of McCulloch where it states Congress may pass legislation that is convenient, under the Necessary and Proper Clause, to meet its ends if they are constitutional?

CC FOURTH ERA: What was MORRISON ("VIOLENCE AGAINST WOMEN ACT") and its HOLDING?

Morrison (“Violence against Women Act”) 1. Reaffirms Lopez standard.2. Gender motivated crime is not an economic activity. (It seems like regulation that is personal crime and not economic crime)3. Congress came up w/ congressional findings about how violence against women affects family, but the Court played this down.

RAICH 1. This case essentially has the effect of overruling Lopez and Morisson—limiting their effect. 2. The cultivation of MJ, even if purely local, can be regulated b/c it is economic activity. a. Under this ruling, economic activity can be just about anything you can imagine. b. There are laws that prohibit the possession of economic activity. 3. Attenuated link [reminiscent of direct/indirect 2nd era] a. It is no more attenuated than Wickard. 4. The Court is satisfied w/ Congress’s rational basis for regulating MJ. a. Here, Congress is trying to eliminate the trafficking in MJ. --7. DISSENT: O’Connor a. The Court has defined economic activity so broadly that any non-economic activity may be stretched to be economic in some way. i. Example: You can say raising a child at home is economic activity, raising its citizens.

RAICH: What was Scalia's NECESSARY and PROPER clause CONCURRENCE?

Necessary and Proper Clause (Justice Scalia) a. Congress can pass legislation that is necessary and proper to regulate interstate commerce, such as drug trafficking as part of a larger scheme. The government will have difficulty in determine whether the drug was obtained illegally or illegal; Congress should be given some leeway i. So this is an exception from Lopez.

RAICH: What about this regulated economic activity [allowing people to grow Marijuana] being a traditional state function?

5. What about this activity being a traditional state function? a. Since there is a conflict b/w a federal law barring medicinal use of MJ and a State law that would permit this activity, the federal supersedes it under the Supremacy Clause. i. The State however, may argue that the State has always regulated criminal law. ii. REFRAME State argument 1. To counter this pro state argument, it may be argued that Congress is regulating drugs. So reframed this way, traditionally this has been a congressional regulation of that; it just happens to also be a crime. Lopez Morrison Raich 1. Non-economic activity || possession || rape || prod, dist, consumption 2. attenuated link (check) || degree || Wickard outbounds || 3. traditional state function crime/educ. || Crime Sup. || Clause/reframe 4. congressional findings || not nec helpful || Not suff || Very Delineated 5. essential part N/A || ? || || 6. jurisdictional element || N/A || N/A ||

Between which dates was not one fedearl statute found to exceed the commerce clause?

1937-1995

LOPEZ: Congress added a clause llinking the GFSZA to interstate commerce. Does it make a difference that the gun moved in interstate commerce? Would this have a limitation on the congress’s powers then??

No. its kind of stupid since it does nothing. .

What is the central idea of the Rules of Statutory Interpretation for the outline?

Rules of Statutory Interpretation: avoiding constitutional issues

What is the SIGNIFICANCE of interpreting STATUES for Rules of Statutory interpretation?

Significance of interpreting statute: Whenever a statute is ambiguous and its interpretation raises constitutional doubts about federalism, the Court will interpret the statute in such a narrow way to avoid the constitutional issue. To address a constitutional problem, Congress has to give a plain statement that it had intent.

What did Solid Waste Agency (“Migratory Bird”) do for [Rules of Statutory Interpretation]

Solid Waste Agency (“Migratory Bird”) 1. Whenever an administrative agency promulgates a rule, if it impinges on state power, there has to be some plain statement from Congress that that result was intended. a. Otherwise the Court will interpret the statute narrowly.

What did Gonzalez v. Oregon do for Rules of Statutory Interpretation? What is the CHEVRON DEFERENCE?

Gonzalez v. Oregon 1. Can the CSA prohibit physical assisted suicide, and whether CSA give s the AG this power? a. CHEVRON DEFERENCE: whenever you’ve got some vague or broad statute, that when an administrative agency interprets that statute, there should be deference by the courts. i. The reason Chevron doesn’t apply here is b/c Congress didn’t mean to give the AG to declare what is or not a valid legitimate medical purpose. 1. According to the CSA, the AG would have to consult w/ the Secretary of Health to promulgate a rule concerning drugs. The AG did not consult the other secretary.

What are the FACTS of NEW YORK v. UNITED STATES (“Radio active waster storage”) [ Direct regulation of the states and the 10th Amendment (ANTI-COMMANDEERING): ]

1. Facts: Under this congressional statute, the states must pass a law for this active waste to be stored. States can either find a place to put this nuclear waste or take title to the waste. So if a private industry has no place to store the waste, the state must take it.

What are the RULINGS of NEW YORK v. UNITED STATES (“Radio active waster storage”) [ Direct regulation of the states and the 10th Amendment (ANTI-COMMANDEERING): ]

Ruling: Congress may not commandeer state legislatures to pass a state law in order to adhere to the federal law. a. Historically, it did not seem like Congress had the power to commandeer state legislatures. b. Is there anything in the Constitution that permits Congress to do so? i. No. There is nothing under Art I via its enumerated powers to allow Congress to compel the states to enact and enforce a federal program. 1. But Marshall said that silence wasn’t deadly b/c the framers couldn’t enumerate all of Congress’s powers in the Constitution. ii. This violation can either be seen as being outside the scope of Congress’s enumerated powers or an infringement on state sovereignty protected by the 10th Amend 1. Any powers not conferred on Congress by the Constitution, is reserved to the States, according to the 10th Amend. c. What other problems exist w/ commandeering? i. If commandeering is allowed, citizens won’t know who to hold accountable-it blurs political accountability. 1. By trying to implement a federal law through the State legislatures, it might be trying to shield itself from blame. ii. It creates a huge financial burden to devote their funds on federal priorities. iii. State will operate in the way of federal priorities rather than local priorities. They wouldn’t have the freedom to act in different ways—which is one of the benefits of federalism. 3. Instead, Congress must regulate directly and pre-empt state regulation where the federal interest is strong. a. The Court is not troubled the ends Congress is pursuing w/ its commerce power.

How is NEW YORK v. UNITED STATES (“Radio active waster storage”) consistant or distinct from GARCIA? [ Direct regulation of the states and the 10th Amendment (ANTI-COMMANDEERING): ]

How is this New York opinion consistent or distinct w/ Garcia? a. The law in Garcia involved private businesses being affected and not just state employment practices; whereas in New York, the federal only applied to the States. i. Why would this make a difference? 1. If Congress tries to regulate wages by private employers, that is okay b/c if it’s burdensome, the people will challenge that law—states will have vicarious representation through private businesses and the people. 2. But the states don’t have that vicarious representation for the people to challenge it in New York. b. Therefore, if a federal law was applied to both the States and private industry, the Court may allow it.

What are the EXCEPTIONS to COMMANDEERING? [Direct regulation of the states and the 10th Amendment (ANTI-COMMANDEERING) ]

EXCEPTIONS to commandeering ||||| Congress can order judicial officials b/c Congress has historically relied on State courts. A way of getting around commandeering would be to induce States to administer a federal program by offering funds to administer it. State can always turn this down if they choose to.

What is Printz (“temporarily enforce the Brady firearms law”) and how did it affect: [ Direct regulation of the states and the 10th Amendment (ANTI-COMMANDEERING): ]

Printz (“temporarily enforce the Brady firearms law”) 1. RULING Congress may not commandeer State executive officials to enforce a federal law. The holding is the same as New York. a. Original intent i. Early Congresses did not commandeer State executive officials (the dissent disagrees). b. How does this command undermine State autonomy? i. One of the key factors in federalism is letting States have discretion in how to use executive officials, as well as prioritize their time and spending. 1. Here, Congress is trying to make States prioritize federal priorities. c. The 10 AMENDMENT prohibits this congressional action i. The 10th AMENDMENT serves as a reminder to Congress that its powers are only those listed under the Constitution. If a power is not listed there, then it is left to the States. d. This federal encroachment is potentially worse than New York b/c state legislatures are not even being given a policy choice under executive commandeering. e. There may be a separation of powers violation b/c Congress is diminishing the control of the P by not having federal officials execute federal law instead of state executives. f. Policy argument against commandeering i. If Congress can commandeer States to either pass laws in adherence to federal law or enforce a federal law, the Congress may disregard the costs of such legislation since this is also passed on to the States.

What is RENO v. CONDON and how did it affect: [ Direct regulation of the states and the 10th Amendment (ANTI-COMMANDEERING): ]

xlii. Reno v. Condon 1. The Act prohibits State DMVs from selling personal information as well as private parties from reselling personal information for profit. 2. Congress can regulate and prohibit this activity by States and private parties under the Commerce Clause. 4. Moreover, the idea is that when a law applies to private parties and the States, the private parties can help the States to have political protections. Those parties will voice their concern to Congress and the states can have allies. Garcia.

How is RENO v. CONDON's congressional action distinguishable from those in New York and Printz to be a valid exercise of the commerce power? [ Direct regulation of the states and the 10th Amendment (ANTI-COMMANDEERING): ]

How is this congressional action distinguishable from those in New York and Printz to be a valid exercise of the commerce power? a. Since States are owners of these databases, by selling this information they would be acting like a private employer. i. The information being sold would also travel through interstate commerce. b. Unlike Printz where the regulation was an affirmative duty, here it is simply prohibition. i. Prohibition is not as intrusive and costly as an affirmative duty for the States to abide by.

Which part of the CONSTITUTION govern the Taxing and Spending Power?

Art I §8: Taxing and Spending Power (CB 198-207)

For what purpose may Congress tax and spend?

For what purpose may Congress tax and spend? 1. Congress can use this power as an alternative to the Commerce Clause to achieve the same ends through different means. a. Example: Suppose direct regulation (grow a certain amount of wheat) of wheat had been invalidated in Wickard. What Congress can do is use its taxing power to tax those would grow more than what they should produce. The overarching goal of stabilizing the price of wheat could still be met.

What part of the CONSTITUTION governs the Taxing and Spending Power?

What is United States v. BUTLER [Art I §8: Taxing and Spending Power]

United States v. Butler 1. The Court agrees w/ Hamilton’s view that the Taxing and Spending Clause grants Congress broad power to tax and spend for the General Welfare of the country. a. It is for Congress to decide what this is. b. There seems to be almost no limitation on this power. c. Congress can spend to pursue aims that it could not do under the Commerce Clause.

What is SABRI [Art I §8: Taxing and Spending Power]

Sabri 1. If a state government receives federal funds, Congress has created an Act that can bring criminal charges against a state official who has been bribed beyond a certain amount. 2. This act is constitutional b/c under Congress’s Spending Clause, Art I §8, it may appropriate federal funds for the general welfare of the country. And the Necessary and Proper Clause, Art I §8 cl. 18, ensures that these funds are used for the general welfare and “siphoned off” by public officials who engage in corruption. a. This is an example of the broad power Congress has under the Spending Clause.

What is the HOLDING [NOT REASONING] of South Dakota v. DOLE (“withholding highway funds under 21 drinking states”) [Art I §8: Taxing and Spending Power]?

South Dakota v. Dole (“withholding highway funds under 21 drinking states”) 1. Under its Spending power, Congress may achieve policy objectives by inducing the States to take federal grants on the condition that they do what Congress wants them to do. a. Example: Congress had given money for state highways. But it set a condition that in order to receive this money, Congress wanted the states to raise the drinking age to 21.

What is the Four qualifications have to be met for conditional grants to be used under the Spending Clause from South Dakota v. DOLE (“withholding highway funds under 21 drinking states”) [Art I §8: Taxing and Spending Power]?

Four qualifications have to be met for conditional grants to be used under the Spending Clause a. Congress must use it for the general welfare b. Condition has to be expressly stated i. This is like a plain statement ii. Just trying to protect the states c. There must be some relation to the federal program (and the conditional grant) i. Here, the relation is highway funds and raising the drinking age to 21. By raising the age. We make highways safer. d. Last, Congress cannot be coercive w/ financial inducement i. A state should have the choice to turn down the money. If not, then it is coercive.

How do the SPENDING POWERs relate to the COMMANDEERING CASES?

The Spending power is a loophole to the commandeering cases. It can get the states to regulate or influence the states to administer a federal program if certain requisites are met for conditional grants.

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